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EUROPEAN UNITARY PATENT – MAIN FEATURES

Once the Unified Patent Court comes into existence, when a European application is granted the EPO will give the applicant the option of either obtaining:

  1. A “classical” European patent validated in one or more of the available designated EPC states (there are currently 38 EPC member states); or
  2. A European Unitary Patent that covers the participating member states (currently 25 EU states have indicated that they will participate including France, Germany, Italy, Netherlands and the UK).

In addition, if option (2) is chosen, there will be the option of also obtaining individual “classical” European patents for

  1. EPC member states that are not EU states (currently Albania, Iceland, Liechtenstein, Macedonia, Monaco, Norway, San Marino, Serbia, Switzerland and Turkey),
  2. Non-participating EU states (currently Croatia and Spain),
  3. Participating EU states that have not yet ratified the relevant agreements at the grant date of the patent.

“Classical” European patents require the filing of translations at national patent offices depending on the validation countries and whether those countries are party to the London agreement relating to translations. In contrast, the European Unitary Patent will have a reduced translation burden. For a transitional period of 6 years, it will be necessary to file a translation of the European patent at the EPO, whereas after the transitional period no translations will be required. Notably, the translation must be filed in English for European patents where the EPO language of proceedings was French or German, whereas the translation may be into any EU language where the EPO language of proceedings was English.

In addition, “classical” European patents require the payment of annual renewal fees to each national patent office in which the patent is validated.  In contrast, it will only be necessary to pay a single renewal fee (centrally to the EPO) for European Unitary Patents.

The calculations regarding the relative costs of proceeding with a “classical” European patent versus a European Unitary Patent depend on many factors such as the length of the specification and the countries in which the patent would be validated. However, based on some reasonable assumptions, at present it would appear that:

  1. If only France, Germany and the UK are required, a “classical” European patent would be cheaper over the full patent term;
  2. If France, Germany, Italy and the UK are required, the costs would be similar over the full patent term; and
  3. If France, Germany, Italy, the Netherlands and the UK are required, the European Unitary Patent would be cheaper over the full patent term.